NHS Trust chief admits press statement that defamed whistleblower Dr Chris Day was ” clumsily worded”

Ben Travis: Chief Executive Officer Lewisham and Greenwich NHS Trust: Pic Credit News Shopper

Ben Travis, the CEO of Lewisham and Greenwich NHS Trust, admitted today that public statements deemed by former health minister, Sir Norman Lamb to be” inaccurate, severely defamatory and deeply distressing to Dr Chris Day” had been clumsily worded by the trust. The statements were sent to 18 prominent people including MPs, the leader of Lewisham Council and the director of social services.

The admission by Ben Travis was one of a series made during a two day cross examination by Andrew Allen QC, Chris Day’s lawyer, at the end of the second week of an employment tribunal hearing brought by Mr Day against the trust.

Dr Day suffered detriments after bringing protective disclosures about patient safety and inadequate staffing at the intensive care centre at the Queen Elizabeth Hospital, Woolwich where he worked. Two people died there- one after a tube was wrongly inserted into a person’s liver. The disclosures were denied by the trust and Health Education England for six years.

Mr Travis also admitted that the trust’s portrayal of the complaints as a staff shortage that happened just on one night – backed up by an investigation by external clinical management consultants M J Roddis Associates – was incorrect.

But the main disclosures came during cross questioning of Mr Travis on how the trust handled complaints made by Sir Norman Lamb, the former health minister and Liberal Democrat MP, who took up Dr Day’s case.

Chief executive never read the Roddis report in full

It emerged that when Mr Travis first met Sir Norman with Dr Day and his wife he had not even read the Roddis Associates report – whose findings are one of the main bones of contention between Dr Day and the trust.

As his evidence says: ” At the outset of the meeting, I gave the Trust’s perspective on the case. Dr Day then set out his challenges as to why he considered the statements to be factually incorrect, in particular in respect of the Trust’s first statement and some of the summary findings of the MJ Roddis reports.”

“…Whilst I knew of the headline summary of both reports, I had not read these in full and I did not know every detail of them. However, I was aware that the report had concluded that, overall, the Trust had acted appropriately but there were opportunities for learning and improvement”.

When he was questioned by Chris Day on this he admits:” This made it difficult for me to respond at the meeting to Dr Day on specific questions related to the reports, despite a number of questions from him.”

Kate Anderson never produced a written report but absolved the trust

His solution was to set up an internal review of what had happened to report back to Sir Norman. He appointed Kate Anderson, Director of Corporate Affairs, “who had no prior significant involvement in the case, to conduct the review. Her background is as a qualified accountant in the KPMG Public Sector Audit team, working with NHS organisations in both an audit and advisory capacity. She has strong corporate
governance and audit skills and I had absolute faith that she would carry out a thorough review.”

She had no medical knowledge however and had joined the trust in 2019.

Kate Anderson, director of corporate affairs at Lewisham and Greenwich NHS Trust Pic Credit: Linked In

Further questioning by Mr Allen of Ben Travis revealed a lot of missing information about her report which absolved the trust of doing anything wrong. Mr Travis drafted a letter of appointment but never sent it to her. There were no terms of reference for the internal review, there is no record of who she contacted to conduct the review,. no emails about its progress, In fact her written report does not exist.

Ben Travis said in his witness statement “Kate Anderson concluded that the Trust’s actions and statements had been appropriate. She updated me in person on her findings rather than preparing a written report. However, she reflected her findings in a detailed draft letter” for Mr Travis to send to Norman Lamb, but then Mr Travis decided not to send it to him.

His reasoning was rather curious. “I did not send this letter because Dr Day had begun to reference our
discussions with Norman Lamb in support of his application to set aside the settlement agreement.”

Sir Norman Lamb

He did eventually meet with Sir Norman but nobody took any notes. He said he conveyed the findings of the review but Sir Norman wanted a full inquiry and the press statement taken down. Mr Travis decided not to have one and to keep the statement on the website.

He said that Sir Norman did not pursue this further but missed the fact that Sir Norman then initiated a debate on Dr Chris Day’s plight in the House of Commons

Kate Anderson is not being called by the trust as a witness to explain how she compiled the report though she attended the hearing today as an observer.

But Mr Travis now admits the statement the trust put out was ” clumsily worded”.

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Chris Day whistleblowing tribunal: His wife says family faced £500,000 costs if judge took a dim view of him using covert audio

Dr Chris Day

Melissa Day , a registered nurse, gave evidence on behalf of her husband yesterday describing the dramatic moment when they were told by his lawyers that he could face £500,000 costs unless he settled the case with Lewisham and Greenwich NHS Trust and Health Education England in 2018.

” I understood if Chris were to lose the case, the respondents would as the conference note states claim for “the costs between now and the end of the hearing (£120,000 or more)” This was a significant amount of money which would have caused severe financial stress for our family.

She went on: “A further cost threat was linked to potential credibility findings relating to Chris’s use of covert audio. ln these circumstances, the potential total cost liability could be closer to £500,000 which was more than the value of our house and clearly would have put it at risk.

“At no point were any of the cost threats linked to the truthfulness of Chris’ evidence and I certainly had no concerns about this. I did have concerns about a potential reaction from the judge on the use of covert audio. This is despite what the audio showed about the way the patient safety issues were investigated and the validation it gave Chris’ claims that the Respondents’ made false accounts of his dialogue.”

“In the conference, when Mr Milsom [Chris Day’s lawyer at the time]was asked by Chris what the potential liability would be associated with the cost threats Mr Milsom listed wasted costs in relation to covert recordings with Chris’ potential cost threat liabilities as the conference note confirm”.

” At the time I did not properly understand how wasted costs differed from what I now know are ordinary costs. I had no previous experience of employment tribunals or the different types of cost threats. As they were listed together and reference was made to covert audio, I assumed that Chris would be liable for the costs Mr Milsom had listed.”

No choice but to settle

The couple went home and decided they had no choice but to settle the case even if Chris Day thought he had a chance of winning.

“Chris consulted me and wanted to discuss our options over dinner, I replied that there was no discussion to be had and I was not prepared to risk our family’s security. Chris decided very quickly in the conference that based on the costs threats and my opinion that he was not prepared to accept the risk to our family home and security that proceeding with the case would involve. Chris withdrew the case as a direct result of the costs threats.

“My stated reluctance for him to continue came also as a direct result of the cost threats. There was no doubt in my mind that proceeding with the case was not an option after hearing about the cost consequences despite the serious safety issues at the centre of the case, the unacceptable NHS response to them and the toll that getting this case heard had taken on Chris and our family over the preceding four years.”

She also described the day long negotiations that followed about an agreed statement to be made by the trust and Health Education England that was to follow settlement of the case.

Both HEE and the trust insisted that it had to say that they and their external investigators, Roddis Associates had acted in good faith – despite Roddis ignoring the two deaths at the Intensive Care Unit and that it was adequately staffed – contradicting Dr Day’s case. Both the trust and HEE diverted the issue on to the employment status of their advisers.

Trust insisted it must say it acted in good faith

She said: “Mr Milsom spent a large proportion of the morning walking up and down Croydon precinct outside Costa on the phone to counsel about the agreed statement. It is clear all these discussions about the agreed statement would not have happened without the cost threats as Chris would not have agreed to the wording that everyone acted in good faith or any similar wording.”

“This statement was particularly damaging to Chris because it gave the impression Chris’ protected disclosures were not about the intensive care unit, focusing only on one situation where there was a problem with medical ward cover on one night and claimed they had decided not to pursue Chris for costs.”

Melissa Day was cross-examined by Dan Tatton Brown, for the trust, over the statement and whether Dr Day’s real reason for settling was because he was going to lose. She completely denied this.

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Consultant’s devastating critique of Woolwich Hospital’s intensive care staffing in Chris Day whistleblower tribunal hearing

Trust lose battle to ban consultant anaesthetists giving factual evidence

Dr Megan Smith, consultant anaesthetist and barrister. Pic credit: https://msmedicolegal.com/

A devastating exposure of the health and patient safety dangers at Woolwich Hospital’s intensive care unit in 2013 and 2014 was made by a highly experienced anaesthetist and lawyer on the second day of the tribunal case brought by Dr Chris Day against the Lewisham and Greenwich NHS Trust.

At the opening of the hearing the NHS trust had tried to ban Dr Smith and another consultant from giving evidence to the judge on the grounds that the information was irrelevant, needlessly extending the hearing and a waste of taxpayer’s money. The trust itself has already spent nearly £1m on lawyers in fighting Dr Day’s whistleblowing claims of understaffing and risk to seriously ill patients at the hospital.

She told the hearing : “You would not find an anaesthetist or ICU doctor in the country who would accept those ratios. There was a clear and present danger to patient safety – no question about that.”

In her evidence she listed Dr Day’s concerns:

They were:

2.1.1. Doctor patient ratios were inappropriately high and a risk to patients at Woolwich ICU;
2.1.2. ICU trainees who were rostered to cover the ICU (as well as critically ill patients on the wards and in the Emergency Department (“ED’)) had insufficient clinical experience, training, and competence to fulfil a role of such responsibility which put patients at risk and compromised patient safety;
2.1.3. Senior medical supervision of these ICU trainees was inadequate and a risk to patients at Woolwich ICU which put patients at risk and compromised patient safety.

2.1.4. The Respondents’ managers failed to investigate these safety related matters adequately;
2.1.5. The Respondents’ managers provided false information about the claimants protected disclosures;
2.1.6. The Respondent’s managers provided false information to those investigating these safety related matters.

She went on to list the attempts Dr Day to alert people to the problems. They were:

Dr Roberts in a phone call and email on 29 August 2013

Dr Brooke in a meeting on 29 August 2013 and by email dated 2 September 2013;
Dr Harding, Assistant Medical Director for Professional Standards in an email forwarded on 3 September 2013;
Joanne Jarcett, the off-site duty manager, in a phone call and email on 10 January 2014 and a further email on 14 January 2014;
In addition, the Claimant informed Joanne Janett via email on 14 January 2014 that hospital managers were providing false information and were failing to investigate and deal with patient safety issues in the Respondent’s ICU;
Statements made by the Claimant on 3 June to the ARCP panel (which included a senior doctor from the Trust, Dr Harrison) about patient safety at Woolwich lCU, the hospital arrangements for 10 January 2014,
the events of that night and subsequently and attempts by Trust management to discredit him and present the issue as his competence rather than patient safety.”

Dr Chris Day

She then outlined national standards for intensive care units which were in force in 2013 and compared them to the provision at Woolwich Hospital. She said this meant “In general, [the Consultant/Patient ratio should not exceed a range between 1:8 – l:15 and the ICU resident Patient ratio should not exceed 1:8”

She said: “What he [Dr Day] was saying was that at all times when he was working as the resident night time ICU doctor he was expected to cover 18 ICU beds, assess new critically unwell patients on the wards in the hospital and in the ED, and review a list of ICU outlier patients on the wards who had been flagged as potentially requiring admission to ICU and therefore warranted close monitoring and regular review.”

Woolwich Hospital ICU was “prima facie unsafe”

She concluded: “The Respondent’s ICU was, prima facie, unsafe and (if more than a one-off incident) was something that was required to be rectified by the recruitment of more (and in some cases more experienced) junior doctors.”

She then examined the training and knowledge of junior doctors new to working in ICU’s and again found Woolwich Hospital wanting.

“When ICU trainees first begin their training, they are unlikely to possess many (or any) of the core lifesaving skills and competencies that a qualified higher level ICU trainee or consultant possesses. This means that it is completely inappropriate for these trainees to be left alone to manage the ICU out of hours until the department is satisfied that they possess the required levels of skill and competence.

On Dr Day she said: “Doctors with the level of experience that the Claimant had at the time in question
would not have (and would not be expected to have) anything other than basic airway and lifesaving skills. These can save a life as a temporising measure, but definitive airway access (tracheal intubation) and cardiovascular resuscitation have to be secured quickly or the patient will come to harm. These skills (which are routinely provided by the ICU team) are far more advanced and can only be gained by those new to ICU by being taught and fully supervised in performing them until they have achieved a prescribed level of competence (in 2013/2014 the criteria {or such competencies were set out by the Royal College of Anaesthetists” and other colleges.

She severely criticised the lack of supervision at the hospital and the turned to the hospital’s failure to investigate Dr Day’s concerns about patient safety.

Allegations would have been of grave concern

She said: ” The allegations raised by the Claimant would be of grave concern to any medical professional and any serious incident/governance/ risk manager. The primary concern would be for the safety of the patients in the ICU, particularly given subsequent (apparently avoidable) patient deaths. However, the institution ought also to have been extremely concerned about reputational damage and its standing
with those commissioning its services with whom it would have had legally enforceable contractual agreements. I would expect an immediate and thorough investigation to have been initiated.”

She concluded that the press statements by Lewisham and Greenwich NHS Trust at the time did not show Dr Day’s allegations had been properly investigated.

“it seems to me that the Respondent’s press statements and statements on its own website at best underplay the seriousness of what was occurring in the ICU and at worst were misleading in relation to the same.”

She said :The report that was commissioned in 2014 by the Respondent appears to accept and condone the running of the ICU in breach of expressly stated national standards that were put in place in order to ensure that ICU patients received excellent and, arguably more importantly, safe care. The conclusions of the 2014 report are, in my view, completely at odds with these evidence-based principles and are entirely inconsistent with the principles of the delivery of safe and excellent patient care.”

A second anaesthetist consultant will give evidence on Monday.

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BMA and ex health minister Norman Lamb back whistleblower doctor Chris Day in patient safety battle

Dr Chris Day now being backed and funded by the BMA Pic credit: Twitter

The tables are beginning to turn in a seven year battle which has cost £700,000 so far to the taxpayer between Chris Day, an anaesthetist in an intensive care unit ,employed by Lewisham and Greenwich Health Trust.

The case against the trust and Health Education England has been drawn out over seven years at employment tribunals and appeal tribunals. He was forced into a settlement in which he had to withdraw his allegations of patient safety being at risk at the ICU unit at Woolwich Hospital in return for the trust accepting he had genuine concerns as a whistleblower at Woolwich Hospital between 2013 and 2014. The trust , using expensive lawyers, threatened to land him with huge legal bills if he continued and started cross examining their witnesses. The allegations included poor staff ,patient ratios at the ICU and inadequate medical supervision. He also made the same allegations to Health England Education.

Trust forced him to settle by threatening him with huge legal bills

As he said: “After two and a half days of my six day cross examination I was contacted by my legal team and told that the NHS respondents had decided to inform me of their intention to seek costs for the entire four week hearing if I proceeded to cross examine any of the NHS’s14 witnesses and ended up losing the case,”

He had no option but to withdraw to protect his wife and family from bankruptcy should this threat be carried out.

“real prospect of success” says judge

But he has won the right to get the enforced settlement out aside and take his case to the Court of Appeal. In giving judgement the Rt Hon Lady Justice Ingrid Simler DBE stated in the Order of the Court of Appeal that “I consider this appeal has a real prospect of success. Permission is granted”. Simler LJ is a highly experienced Judge and she was previously the President of the Employment Appeal Tribunal.

Until now he was left with trying to raise money so he could afford to pay the lawyers to fight the trust. In the last week in what amounts to a major change of heart, the British Medical Association has decided to fund his battle. Internal sources say this may be the first time the BMA has decided to fund a doctor in a whistleblowing case.

A BMA spokesperson said:

“Chris’ case has brought into sharp public focus the challenges and adverse experiences which doctors can face when they make public interest disclosures to blow the whistle on safety concerns they identify, in the course of carrying out their job.

“Doctors have a responsibility to raise concerns they have about the safety of their patients and yet too often they are put in the position of having to blow the whistle on organisational failures when the organisation in question fails to act. The BMA’s own research shows a majority of doctors work in a culture of fear and are worried about recrimination if they speak out about patient safety concerns. The BMA has been calling for an open culture, where speaking out is encouraged and supported and where our NHS learns from concerns and errors, to improve safety for patients.

“The BMA carried out a comprehensive external review of its member support services and we are now making significant improvements in how we support whistleblowing cases and indeed all members who raise concerns within the NHS. This includes offering more specialised legal support given the complexity of such cases. We are grateful to Chris and other BMA members for their input to this review. Different processes would have been followed if Chris’s case was to arise today and we are pleased to be able to offer Chris the support he needs in the next stage of litigation in his case as well as in the wider interests of the profession and patient care”.

Chris Day said:

“I am pleased to announce that I will be accepting support from the BMA in the next stage of litigation in my case.

“I have always remained a member of the BMA and it is clear to me that the new leadership at the BMA is committed to supporting me and my family where it is able to do so. The Association has spent considerable time and effort understanding my situation and provided me with expert legal advice as I considered the best way forward.

“I know the BMA has undertaken a great deal of work to consider how it supports whistle-blower cases and it has sought to learn from the past. They have established new arrangements to ensure better support for potential whistle-blowers, including guaranteeing a meeting with a specialist solicitor and case manager that now takes place before any case is considered too weak to proceed or on cases that are initially considered strong enough to proceed where this view subsequently changes.

Sir Norman Lamb. Pic credit: Twitter

“I look forward to working with the BMA. The BMA has a critical role in ensuring that no doctor should ever be forced to choose between their career and the safety of their patients and I would encourage every doctor and medical student to join the BMA and take an active role in shaping their trade union. Doctors need a trade union now more than ever.”

Chris Day has also got the support of Sir Norman Lamb, the former Liberal Democrat health minister, who backed him while he was in government. Sir Norman is now the chairman of the South London and Maudsley NHS Foundation Trust., the neighbouring trust to Lewisham and Greenwich. Despite some concern in the NHS establishment he is to continue to support Chris Day and will be a witness.

Given the dire findings in the Usha Prasad case with Epsom and St Helier University Health Trust, reported in this blog, this development is the best news a whistleblower doctor can get.

Exclusive: General Medical Council investigation exonerates Dr Usha Prasad of any medical failings

Dr Usha Prasad

Dr Usha Prasad, the cardiologist currently appealing against her dismissal from the Epsom and St Helier University Trust, has been exonerated by General Medical Council of any medical failings or putting patient safety at risk.

The decision by the GMC not only rejected a dossier of complaints from the trust but decided that the issue was closed and will not be re-opened again by the GMC.

The decision is part of a long running saga that has been going on for nine years and heightened by an anonymous letter sent by Dr Perikala, a staff doctor, who made the patient safety allegations in an anonymous letter to the General Medical Council, Care Quality Commission, Daniel Elkeles, the chief executive of the trust and Jeremy Hunt, then the health secretary in 2015.

The GMC initially declined to investigate Dr Perikala’s anonymous complaint but the trust has persisted in pursuing her at the GMC.

dr james marsh pic credit: Epsom and St Helier University Health Trust

I understand Dr James Marsh, the trust’s medical director, and Dr Richard Bogle, the lead cardiologist at the trust, compiled a dossier of no fewer than 43 cases which they claimed should be investigated. The GMC narrowed it down to seven cases and sent them for review to a very distinguished consultant at the James Cook Hospital in Middlesbrough whose career has spanned work at Papworth Hospital and Addenbrooke’s Hospital in Cambridge. The very detailed report came back completely exonerating her of any failings. She has also received glowing references from Pinderfields Hospital where she is currently working as a cardiologist after the Epsom trust dismissed her.

Dr Richard Bogle pic credit:www.richardbogle.com

The GMC’s decision comes just as an internal inquiry into her appeal is under way. This is being heard by Claire McLaughlan   an independent consultant, and Associate Director of  the National Clinical Assessment Service with an interest in the remediation, reskilling and rehabilitation of healthcare professionals. The case was also being followed by Dr Zoe Penn, Medical Director NHS England ,London Region and Lead for Professional Standards. She is sitting on the panel with Claire McLaughlan. Ms Mclaughlan runs a private business with her husband in Hampshire.

The fact that the hearing is taking place now is questionable since Professor Stephen Powis, national medical director of NHS England, told health trusts NOT to hold such hearings when the NHS is under pressure from the pandemic. I checked with the press office of NHS Resolutions and they have supplied me with the guidance for such hearings. They really should only be held if there is an absolute necessity and immediate risk to patient safety. Now with the GMC deciding there is no current and immediate risk to patient safety in Dr Prasad’s case – this makes the hearing even more questionable.

Officially the GMC will not comment on personal cases but they did confirm her clean bill of health entry on their public register which is reproduced below. All entries on this register have to be kept up to date on a daily basis. The saga continues but the case being made by the trust looks pretty weak after this decision by the GMC.

There are three earlier blogs on this issue.

They are: A bizarre tribunal hearing on the treatment of Epsom’s health-trust’s sole woman cardiologist

Top cardiologists back Usha Prasad’s fight against ” badly behaving ” health trust

Botched internal inquiry hearing into Dr Usha Prasad at St Helier Hospital as doctors fight death from Covid- 19

 

Since this blog was published I have had this strong message of support from Justice for Doctors. Here it is:

Dear Mr. Hencke, you are doing an excellent job by highlighting the problems with our NHS and how splendid doctors like Usha Prasad had been treated. It was very courageous of Usha to challenge the wrongdoings and the harsh decisions by our health institutions at a time when the GMC are calling retired doctors to rescue the overstretched NHS.

Without dedicated and committed doctors like Usha Prasad, our NHS will crumble and collapse. The misleaders and bullies will remain to demolish what goodness is left in our NHS. Unfortunately, most doctors retire or change location whenever they were unfairly challenged. Moving away will not solve the problem but encourage bullies and harassers to thrive and do more damage.

In our view, Dr. Prasad has won the moment she decided to stand firm and challenge the discrimination, the harsh and unfair decisions. We congratulate both of you for raising awareness about what goes on in our hospitals and congratulate Usha for her courage and conviction.
Thank you
On behalf of Justice for Doctors